March 26, 2011

First up, Wis. Stat. 991.11, from which the latest hubbub derives, as there remains to complete the legislative process to 2011 Wisconsin Act 10 the one step — "publication"* — between the status quo and enforceability, the moment the Act is released to the various wiles of Gov. Scott Walker. The Act is currently subject to the wise and cautious shepherding of WISGOP Senate leader Scott Fitzgerald, who is devising any manner of chicanery to hand the thing off to Walker.

(He said he got this brainstorm from reading a newspaper article.)

So, 991.11:

Effective date of acts. Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated under s. 35.095 (3) (b).

Stricken are the bits that aren't germane here, but remain legible so you can still read them if you so desire have no life (in which case there's another 7,000 pages of them awaiting your pleasure).

Anyway, first notice that while there is a 35.095(3)(a), the effective date of acts provision (991.11) does not make reference to it.

35.095(3)(a):

[PUBLICATION] The legislative reference bureau shall publish every act and every portion of an act which is enacted by the legislature over the governor's partial veto within 10 working days after its date of enactment.

That's the "publication" (or "printing," as this space would contend) Republican Senate leader Scott Fitzgerald claims substitutes for publication for the purposes of 991.11. But it has nothing to do with 991.11. Here is the relevant — the operative — provision to 991.11:

35.095(3)(b):

PUBLICATION The secretary of state shall designate a date of publication for each act and every portion of an act which is enacted by the legislature over the governor's partial veto. The date of publication may not be more than 10 working days after the date of enactment.

Now the secretary of state did (for he "shall") at one point designate a date of publication for the Act, but on March 18, he rescinded it in compliance with the Dane County circuit court's temporary restraining order, which prevents the secretary of state from publishing the Act.

As for the date of publication being not more than 10 working days after the date of enactment, there is no reason why the secretary of state may not designate one retroactively, if and when the court order is lifted. In the meantime the secretary of state is enjoined from so doing and places himself in peril of contempt by acting.

The point is that publication by 35.095(3)(a) (what Scott Fitzgerald "ordered") does not fulfill the requirements of 991.11. It still remains for 991.11 to be satisfied and so in nowise might it be said that 2011 Wisconsin Act 10 has taken effect, nor that it is enforceable.

Sen. Fitzgerald and now Secretary of Administration Mike Huebsch are completely unmoored from the text, as Clarence Thomas might say, although Sec. Huebsch is considerably more circumspect about the whole affair than is the supercilious bluster of Sen. Fitzgerald, with his "supremely confident" and "perfectly" adhering to the law.

* Scare quotes are trending. I used them precisely this way last night and today they appeared in Dane County circuit court "duty judge" Sarah O'Brien's March 25 memo** (.pdf; 2 pgs.). Betcha she scanned the subchapter heading also: LEGISLATIVE; CLASS 1 PRINTING.

By comparison to the subchapter heading, "publication" is a sub-sub-subchapter heading, and its meaning there is informed by 991.11, because 991.11 sends you to 35.095(3)(b) in the first place. Thus does the "publication" in 35.095(3)(b) have the meaning 991.11 gives it, and that meaning is as a formal step in the legislative process, that moment the Act becomes owned by the executive branch.

This "publication" — date of, to be exact; it's a linear, timeline companion to date of enactment, when the governor approves the Act — is within the authority of the secretary of state. It's not the same "publication" as the one in 35.095(3)(a), that publication in the legislative reference bureau's provisionally separate authority.***

There's a reason why 991.11 explicitly points at 35.095(3)(b) and explicitly does not point at 35.095(3)(a). Because the secretary of state's publication is substantively functional in the legislative process — it's a scheduling milestone, if you will — whereas the legislative reference bureau's is a function of records-keeping: it's a recording of the milestone that was made by the secretary of state.

And since the secretary of state is the subject of a temporary restraining order, he cannot make the milestone and therefore the LRB's recording is blank, so to say, in the substantive legal sense.

I guess you might even call that a "primer" in statutory construction. Although I wouldn't as I'm not purporting to "teach" anybody, only show you so you can see and think and work it out for yourself.

Finally, they could clean up the whole mess by changing the "shall publish" in 35.095(3)(a) to "shall print." Get on it, Sen. Grothman.

14 comments:

1) Has anyone found a previous time where the LRB "published" the law without the Secretary of State? It seems like the type of thing the Republicans would be falling over themselves to point out.

2) Has anyone seen a newspaper article that suggests what Fitzgerald claims he read? Considering the attention the bills been receiving I'd be shocked if a story mentioning it escaped the attention of those of us opposed to the bill.

So my question is, does Fitzgerald, a named defendant in the case before Sumi, open himself to contempt of court for ordering the LRB to "print" the law and then claiming it's in effect despite her clear enjoinment? Could he go to jail?

Dunno offhand, it's fishy and possibly obstructive, but we'll probably hear the question from Ozanne in court Tuesday morning (if not sooner). Although the judge may just shrug, for some of the reasons mentioned above (and other reasons not mentioned).

I think it is important for others in state government not to act as though this IS law. They should point to the Secretary of State to show there is no clarity on the issue right now.

The LRB head was foolish to let Fitzgerald bully him into "printing" Act 10. Although he didn't feel that it would create new law, he could reasonably guess that Fitz would claim it did. At the very least, it muddied the waters and violated the spirit of Secty. La Follette's publication date retraction and Judge Sumi's TRO.

Just like the cops in the Capitol being ordered to keep lawmakers out of their own offices, state officials are in an uncomfortable position with Huebsch telling them to act "as if" and legal experts telling them to wait for the court to weigh in. I hope they will be prudent and wait. I hope we will all resist the any dicey law-making until it is clear what our obligations are. Don't make what Fitzgerald does a fait accompli.

"Thus does the "publication" in 35.095(3)(b) have the meaning 991.11 gives it, and that meaning is as a formal step in the legislative process, that moment the Act becomes owned by the executive branch."

If this is correct, then a law can be made effective without any action whatsoever by LRB. Yes? I guess I just don't know what to think about that. So Im'a gonna shut up now.